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As noted above, many carriers are opting to play it safe and simply pay TTD during that time. We believe that it is reasonable to argue that no TTD is owed because the loss of modified work was due to the governmental order, however we cannot guarantee the WCAB will see it that way.

The basis of this argument is as follows: if your nonessential employer did offer modified duty during a “stay at home” order, they would literally be violating a governmental order and, in some areas, could be charged with a misdemeanor. Based on that, we would argue that you are not liable because the loss of work was due to complying with a stringent government order not to provide modified work.

Still, we cannot guarantee that the courts will see it the same way, and we understand why carriers would want to play it safe and simply pay TD in that scenario.

It’s also worth noting that if the employee has been quarantined, then the sick leave provisions of the new law would apply.

First, I appreciate the fact that the infected co-worker has not been identified to his/her co-workers. Maintaining the infected individual’s privacy is a must. Federal and state law apply here, including the FEHA.

Turning to your questions, the employer should provide him with a DWC-1 claim form.

Secondly, if he does later test positive for COVID-19, the employer might have liability. However, the timing of the positive test date and result is a very important part of this analysis because:

• If he takes the test within the 14-day period of last being near that co-worker or at the employer’s worksite, and it shows “positive,” then the employer’s probability of being liable is very high. This is because the employer placed him in a “zone of danger.”
• But if he tests positive more than 14 days after the last exposure to that coworker or the worksite, then the employer’s probability of being liable is decreased. This is because of the standard 2-3 week period associated with this disease. So let’s say he tests positive 25 days after the date of last exposure – then the employer has a much stronger case of denying liability.

Regardless of when he tests positive, I’d recommend doing a strong and very detailed factual investigation. Many questions should be posed, such as:

• Who does he live with?
• Any positive test results there?
• How often did he go to the grocery store?
• Did he go to the pier, park, or play basketball on those nice warm weekend days?
• When did symptoms begin?
• Any night sweats, or cold sweats?
• Any really minor symptoms?
• If so, when did those start?
• Did other co-workers get infected?
• Did he have to work with them?

Many more potential questions have been identified in our seminar “The Pandemic, the Claims Desk and You: How Will COVID-19 Impact W/C?”, which is available on our website, as is the PowerPoint containing all of the recommended questions.

Please remember that each case of this will turn on facts like that in the investigation.

I would argue that we are not liable for that $66 CourtCall fee. I see that as being akin to the $10 to $25 parking fee at most WCABs. It’s a cost of doing business, we don’t reimburse AA for parking fees.